International Court of Justice Finds Serbia Innocent of Genocide, but Not Entirely Clean

Lippman, Peter, Washington Report on Middle East Affairs

THE INTERNATIONAL Court of Justice (ICJ) on Feb. 26 handed down a decision on the lawsuit filed by Bosnia and Herzegovina against Serbia for genocide. The lawsuit, filed in 1993 in the heat of war, finally was heard early last year. A year later, a majority of the Court's 15 judges agreed that Serbia was not guilty of genocide nor of complicity in genocide-but that it was guilty for failure to prevent genocide. The verdict further states that genocide was committed in Bosnia (but only in the case of Srebrenica), and that Serbia has violated its obligation to turn over suspects implicated in the war crime, principally Gen. Ratko Mladic.

The complex decision leaves no one satisfied, although it removes an onerous accusation against Serbia-as well as the complainants' demand for restitution. The survivors of the Srebrenica massacre, on the other hand, are shocked and bitter at what they feel is the exoneration of the principal author of the atrocity.

The Verdict's Ramifications

The finding that Serbia failed to prevent genocide is no light matter, in that it nevertheless signifies that the state violated the 1948 Genocide Convention. But the Convention's legal definition of genocide proved to be too narrow to allow conviction-or, at the very least, the ICJ interpreted it so narrowly as to render the concept useless in a practical sense. The Convention's definition of genocide involves "intent to destroy, in whole or in part, a national, ethnical, racial or religious group." The ICJ found concrete proof lacking. Such proof would have to have involved something on the order of a written command to exterminate Bosniaks (Bosnian Muslims), or other non-Serbs.

It is quite clear from the heavily documented events of the war that, first of all, Serb forces in Bosnia worked to destroy a significant part of the Bosniak and Croat communities that lived on the territory Serb forces wished to conquer. The figure of 100,000-plus deaths, at least two-thirds of which were Bosniak casualties, certainly attests to this. Secondly, influence and support from the Serbian government under Slobodan Milosevic also are well established: supplies and payment from Belgrade to Serb forces in Bosnia were all but uninterrupted from before the war to its end-and well afterward, for that matter. General Mladic, commander of the Bosnian Serb army, was on the payroll of the Serbian government during the war and for several years after.

Nevertheless, all these easily verifiable facts did not add up to "intent" in the minds of most of the ICJ's judges. While acknowledging that Serbia had provided important donations of supplies to the Bosnian Serb army and so had "influence" over the army-thus the incrimination for failure to prevent genocide-the ICJ stopped short of recognizing that Serbia had control over the wartime events.

One development that influenced the proceedings was the fact that the ICJ was unable to access crucial files from the Serbian government's war archives. Even though some of these files were in the hands of the International Criminal Tribunal for the former Yugoslavia (ICTY), they had been delivered to the Tribunal on condition that they would not be revealed to anyone else.

The ICJ's verdict has confounded observers of the breakdown of the former Yugoslavia who see, despite the legal thicket, that the entire apparatus of extreme nationalism and Greater Serbian expansion was the foundation, if not the sole culprit, for the atrocities that took place in Bosnia and Herzegovina. Not only did the common legal concept of command responsibility fall through the cracks, but instances of genocide far afield from (and well preceding) Srebrenica-including Prijedor, Bijeljina, Foca, Zvornik, and others-were denied.

On the other hand the verdict, in at least recognizing that one instance of genocide did take place (and thus reaffirming previous findings of the ICTY), clearly points at the army of the Republika Srpska (RS, the Serb-controlled entity in Bosnia) as responsible for genocide. …

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